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59 FLRA No. 139
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS
March 25, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles D. Long filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the grievant's one-day suspension was for just cause. He also found that the grievant's decertification as an Air Traffic Controller-in-Charge was unwarranted and ordered that the grievant be made whole for that period.
For the reasons set forth below, we set aside the portion of the award finding that the grievant was improperly decertified and ordering that the grievant be made whole for the period of his decertification.
II. Background and Arbitrator's Award
The grievant works as an Air Traffic Control Specialist (ATCS) at the Atlantic City International Airport (ACY). He is also a certified Controller-in-Charge (CIC), essentially functioning as a supervisor when required, but without the authority to counsel employees or authorize overtime. See Award at 2 n.1.
On December 14-15, 2001, the grievant was working in the Terminal Radar Control facility (TRACON) as the CIC of the 11:30 p.m. to 7:30 a.m. midnight shift. An ATCS from the earlier shift was working in the Tower. Unlike the Tower, the TRACON has no windows and prevents anyone who is working there from viewing what is happening outside.
At approximately 11:25 p.m., the ATCS working in the Tower informed the grievant that a plane was preparing to depart. A few minutes later, another ATCS, who was scheduled to relieve the ATCS in the Tower, called the grievant to inform the grievant that he would be late. The grievant directed the ATCS who was finishing his shift in the Tower to combine the Tower Position into the grievant's TRACON position. After the positions were combined into the TRACON, the grievant allowed the ATCS to leave the Tower.
Shortly after the ATCS had left the Tower and before the next ATCS arrived, the pilot of the plane that had just taken off radioed that he was returning to the airport and requested clearance to land. He was returning because during his departure his plane had clipped and broken several runway lights, thereby suffering minor damage to a propellor. While working alone in the windowless TRACON, the grievant cleared the plane to land without informing the pilot that there was no visual contact or that no one was in the Tower. The plane landed without incident.
The next day, the pilot informed the Flight Standard District Office in Philadelphia of the reason for his return to the airport. Over the course of the Agency's investigation into the incident, the grievant explained that he had cleared the plane to land from the TRACON and answered questions regarding what time the ATCS left the facility on the night in question.
After the Agency's final investigatory interview with the grievant, the grievant was decertified from the position of CIC on January 9, 2002. On February 18, 2002, the grievant was issued a one-day suspension for "the improper combining of the tower/tracon on the night of December 14th, 2001[;] the improper handling of [his] CIC duties during this time period[;] and the unacceptable safety procedures used in the handling of [the plane.]" Award at 7. The grievant was recertified for the CIC position on March 1, 2002.
A grievance was filed and submitted to arbitration. The parties did not stipulate to an issue before the Arbitrator. The Arbitrator framed the issue as: "Whether the [ v59 p777 ] one (1) day suspension of the grievant was for just cause? If not, what is the appropriate remedy?" Id. Subsequently, the Arbitrator stated that "[a]t issue is whether: 1) combining the Tower into the TRACON; 2) the handling of his CIC duties; and 3) the procedures used in the landing of [the plane] constitute just cause for the grievant's one (1) day suspension." Id. at 15. The Arbitrator also determined that the grievant's decertification was "a proper subject for this arbitration proceeding." Id. at 20.
The Arbitrator found that "[t]he one (1) day suspension of the grievant was for just cause." Id. at 23. The Arbitrator went on to find that the grievant's decertification from the CIC position and his subsequent recertification "without any meaningful substantive remediation renders the period of his decertification unwarranted discipline beyond the one (1) day suspension." Id. The Arbitrator ordered that the grievant be made whole for the period of his decertification and that any reference to the grievant's decertification be removed from his official personnel file.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that "the award is not consistent with the issue framed before the [A]rbitrator." Exceptions at 2. In this regard, the Agency contends that the Arbitrator "clearly went beyond the scope of the issue before him" when, after "sustaining the one (1) day suspension of the employee (the issue before him)[,] he also imposed a remedy to an issue that was not before him." Exceptions at 3-4. According to the Agency, "nowhere during or after the proceedings did the [A]rbitrator, Union, or [Agency] frame the issue before the [A]rbitrator as a remedy seeking the recertification of the grievant . . . ." Id. at 3.
The Agency further argues that the make whole remedy is contrary to law because it is contrary to the Back Pay Act and because it violates management's right to determine its organization and infringes upon management's rights to assign work, train and have properly certified personnel conduct the Agency's operations.
B. Union's Opposition
The Union argues that the Arbitrator did not exceed his authority because the Arbitrator framed the issue to include the grievant's decertification and the award is responsive to the issue as he framed it.
The Union also asserts that the award is not contrary to law, including the Back Pay Act.
IV. Analysis and Conclusions
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). When the parties fail to stipulate the issues, the arbitrator may formulate them on the basis of the subject matter of the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000) (citations omitted).
We construe the Agency's claim that the Arbitrator "imposed a remedy to an issue that was not before him" as a claim that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration. Exceptions at 4. As noted above, the parties did not stipulate to the issue before the Arbitrator. In the portion of his award entitled "Issue," the Arbitrator framed the issue as whether the one-day suspension was for just cause, and if not, what is the appropriate remedy? Subsequently, the Arbitrator stated that "[a]t issue is whether: 1) combining the Tower into the TRACON; 2) the handling of his CIC duties; and 3) the procedures used in the landing of [the plane] constitute just cause for the grievant's one (1) day suspension." Award at 15.
After twice having specifically stated that the issue before him was whether the grievant's one-day suspension was for just cause, the Arbitrator expressly found that "[t]he one (1) day suspension of the grievant was for just cause." Award at 23. At that point, "[g]iven the unambiguous issue framed here, and the Arbitrator's unequivocal finding that" the one-day suspension was for just cause, "the fashioning of any remedy is improper" and "the arbitration process should have ended." Washington Plate Printers Union, Local 2, IPPDSPMEU and Graphic Communications Int'l Union, Local 4B, AFL-CIO, 59 FLRA 417, 420-21 (2003) (Member Pope dissenting in part).
Instead, the Arbitrator went on to address the propriety of the grievant's decertification, implicitly finding that the decertification was improper and ordering that the grievant be made whole. However, having already unambiguously framed the issue as whether the one-day suspension was for just cause, the Arbitrator's additional consideration of the decertification addressed [ v59 p778 ] a matter that is not encompassed by the framed issue. The Arbitrator could have framed the issue to include the decertification, but he did not do so. [n2]
Consequently, based on the Arbitrator's unambiguous framing of the issue, the decertification was not before the Arbitrator for resolution. Based on the foregoing, we conclude that the Arbitrator exceeded his authority by deciding and awarding a remedy concerning an issue that was not submitted to arbitration. See United States EPA, Chicago, Ill., 58 FLRA 495 (2003) (Member Pope dissenting); United States Dep't of Veterans Affairs, Northern Ariz., Veterans Admin. Health Care Sys., Prescott, Ariz., 57 FLRA 922, 923 (2002); Nat'l Labor Relations Bd., Tampa, Fla., 57 FLRA 880, 881 (2002); United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atlantic, Indian Head, Md., 57 FLRA 687, 688 (2002); United States Dep't of Health & Human Servs., FDA, New Orleans, La., 54 FLRA 90, 95 (1998); Veterans Admin., 24 FLRA 447, 451 (1986).
Accordingly, the portion of the award finding that the grievant was improperly decertified and ordering that the grievant be made whole for the period of his decertification is set aside. [n3]
The portion of the award finding that the grievant was improperly decertified and ordering that the grievant be made whole for the period of his decertification is set aside.
Dissenting Opinion of Member Carol Waller Pope:
In finding the award deficient on "exceeded authority" grounds, the majority exalts form and ignores substance. Because the issue of the grievant's decertification was clearly at issue before the Arbitrator, I dissent.
The majority contends that the Arbitrator "unambiguously" framed the issue as "whether the one-day suspension was for just cause[.]" Majority Opinion at 5. I agree with the majority that whether the suspension was for just cause was an issue before the Arbitrator. However, it is specious to assert that the only issue before the Arbitrator was whether the suspension was for just cause. Among other things, it flies in the face of the fact that the Arbitrator unambiguously stated that "the grievant's decertification from the position of CIC from January 9, 2002 until March 1, 2002, is a proper subject for this arbitration proceeding." Award at 20. By finding that the Arbitrator was not permitted to address the latter issue, the majority is reversing precedent that requires denial of the Agency's exception. See, e.g., United States Dep't of HHS, SSA, Office of Hearings & Appeals, 48 FLRA 833, 834, 838-39 (1993) (arbitrator did not exceed authority by addressing issue responsive to parties' arguments but not included in arbitrator's initial framing of issues). The majority's failure to both acknowledge that and explain why it is doing so renders the majority's decision arbitrary and capricious on its face. See Local 32, AFGE v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985). As the Arbitrator expressly found that the issue of the grievant's decertification was properly before him -- and this issue was raised as early as the grievance, see Opp'n, Attachment 2 -- the Arbitrator did not exceed his authority by resolving this issue. Accordingly, I would deny this exception.
I would also deny the Agency's Back Pay Act exception to the Arbitrator's requirement that the Agency make the grievant whole for the period of his decertification. With regard to the first Back Pay Act requirement, an agency commits an unjustified and unwarranted personnel action when it violates a collective bargaining agreement. See United States Dep't of HHS, 54 FLRA 1210, 1219 (1998) (HHS). The Arbitrator's conclusion that the Agency's decertification of the grievant constituted unwarranted discipline because of a lack of "substantive remediation" implicitly finds a violation of Articles 67 and 80 of the parties' agreement, as asserted by the Union, and thereby satisfies the first requirement. Award at 23; see Union Post-Hearing [ v59 p779 ] Brief at 15. With regard to the second Back Pay Act requirement, the Arbitrator did not provide a remedy for anything that did not "result" from the contract violation. See HHS, 54 FLRA at 1219 (requiring that the personnel action "has resulted in" loss of pay, allowances or differentials). In this regard, the make whole remedy, by its terms, places the grievant in the position in which he would have been absent the contract violation.
Finally, I would deny the management rights exception because, even assuming that the award affects the rights cited by the Agency, the award is not deficient. Specifically, because the discipline mitigates discipline based on a just cause provision, the award satisfies both prongs of the standard established by the Authority in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997). See, e.g., United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 625-26 (2000).
For the foregoing reasons, I would deny the Agency's exceptions.
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